I’ve thought a lot over the last week about President Trump’s actions following the November 3 election. And as a lawyer I keep coming back to comments like the one from Governor DeWine, who said earlier in the week: “I’m a former prosecutor.” “I’m a great believer in the ability to have your courts and go in to make your case and they [the Trump administration] have every right to do that and that looks like what they are trying to do.”

I suppose in the abstract, that’s true. But not entirely. Does any person have a “right” to file a suit that has no factual or legal basis? I don’t think so. I say that for several reasons.

First, consider Federal Rule 11. The critical part of that rule says:

“By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

  • the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law;
  • the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery;”

And Rule 11 has teeth. A court can impose sanctions when a party or a lawyer violates the rule:

“The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.”

And Rule 3.1 of the Rules of Professional Conduct, that govern the conduct of attorneys, says:

“A lawyer shall not bring or defend a proceeding, . . . unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”

So, sure people can file lawsuits, in the sense that anyone can write up a complaint and pay the filing fee. So too can a person drive a car 100 mph on a residential street just by pushing the pedal to the floor.

But if that lawsuit lacks any factual or legal basis, and the filing party can get fined and potentially disbarred for filing it, does that person really have “every right” to file it? I think not, just like I think that the heavy footed driver has no right to speed down my street.

Seems pretty clear to me.